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tv   Collins v. Virginia Oral Argument  CSPAN  January 18, 2018 9:23pm-10:20pm EST

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professor mark polatt on president lincoln and artist portrayals. >> mr. lincoln, give me back my 500,000 sons, meaning the soldiers that have been lost in the war. this is during the civil war, 1860, the darkest hours of the civil war, 1864. lincoln, who the artist shows with his leg slung over his chair, like he's a country bump kin, right, his reputation for being so inelegant and crude. he says, well the fact is, by the way, that reminds me of a story. which was another part of his reputation. he was always telling stories. and hom lees, tall tales and jokes. >> at 10:30 p.m. from the american historical association's annual meeting, a discussion on free speech on college campuses. >> intellectual diversity, i think, is healthier than many people suspect.
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now, that doesn't mean that there isn't an issue where certain students' views and certain groups have felt that they have received less active attention from the faculty and the administration. and i include conservative students in that group. they have received less public attention. and i think we need to meet those students where they are, and to help them to develop a place in our public conversation where they feel more included. >> and sound at 4:00 p.m. eastern on real america, the 1987 film drug abuse, meeting the challenge. >> anyone that says cocaine's not addictive, they lie. >> when you do cocaine, you lie to yourself about being in control. >> cocaine's not hip. it's hype. anyone who tells you it's okay is a liar. >> watch american history tv every weekend on c-span 3.
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this weekend the c-span cities tour takes you to new port, rhode island. with the help of communications center, we'll explore newport's rich -- working library, and author peter keernan on shrinking the middle class. >> it's been the center piece, our dna, has become our central nervous system. when it prospers the rest of the economy prospers, when it doesn't, what it tends to do is create sort of a barbell effect where the two uncertainties are. a few people really, really rich, and the poor get really, really poor. and the balance between these two, the key sort of fulcrum position is the middle class. >> on sunday at 2:00 p.m. on
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american history tv hear about newport's history as the largest slave trading port in north america. >> settled in 1639 over the course of the next 100 years newport and the colony rhode island would grow to become not only muft most active ports in british north america, but it also became the most active slave port. between 1705 and 1805, newport merchants along with bristol merchants within rhode island were responsible for merely a thousand slaving voyages from rhode island to the west african coast to the west indees. they transported 100,000 africans to the new world. >> watch cities tour of newport, rhode island beginning saturday at noon eastern on book tv on c-span 2, and sunday another 2:00 p.m. on american history tv on c-span 3, working with cable affiliates as we explore america. and now the supreme court oral argument for collins v.
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virginia a case about warrantless searches. now allows police to search a vehicle without a warrant if they have probable cause to believe that it's been involved in illegal activities. this is just under an hour. we'll hear argument next in case 161027 collins versus virginia. >> the warrant requirement for the home cannot be overthrown by the automobile exception. under the commonwealth's argument, on probable cause alone, an officer may search a vehicle anywhere that he finds it, and may go anywhere that he needs to in order to access that vehicle. that rule cannot survive foundational fourth amendment principles. searches of the home in curtilage without a warrant are
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presumptively unreasonable as this court has often recognized. the rule we ask this court to adopt is that the automobile exception does not apply to a vehicle found in the curtilage of the home. >> suppose the police have probable cause to believe that the vehicle is stolen, and they even get a warrant to inspect the vehicle, but the vehicle is parked in this port. do they need a warrant to go get the car for which they have a warrant? >> well, your honor, the warrant would specify the place to be searched for the car. and so commonly a warrant would say, for instance, the dwelling and curtilage to look for this motorcycle. so the warrant that authorizes
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the search of the motorcycle would, by its terms, authorize the intrusion into the curtilage. >> what if it didn't? so they have a warrant, here, let's say, to search for -- they have probable cause to search this thing covered by a tarp. they have a warrant to search this motorcycle because it's been involved in criminal activity, they want to get the vehicle identification number from it. and they see it. let's say it's parked two feet from the curb, but arguably -- or it's parked where it is here, maybe in the curtilage, maybe not in the curtilage, that warrant would be insufficient? >> well, your honor, the fourth amendment, by its terms, requires the warrant to specify the place to be searched. so if they've seen the motorcycle in that spot and they get a warrant, the warrant would say this house on dell mead avenue, may have included the picture and it would by its terms authorize the access to that. >> this is my question about
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your argument based on the curtilage. we ask whether a search within or outside the curtilage in order to determine whether the fourth amendment applies at all. but that's not really the question here. because there is probable cause. and there is the motor vehicle exception to the warrant requirement. so the issue is not whether there was a search. yes, there was a search. and yes, i note, if it was the curtilage, then there was an intrusion on the protected area. but the warrant -- the motor vehicle exception to the warrant requirement, i take it, is based on two things. one, is the risk that the vehicle is going to be moved during the time when the warrant is sought. and second, is a consideration on the other side of the risk that if there's not a warrant, the police will be wrong about
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probable cause and the degree of intrusion on property on legitimate property interests that occur in that situation. it's a balancing. it's not a consideration of whether it's on the curtilage or not. and it's hard to see why the balance is any different here than it would be if this motorcycle had been parked on the street. the risk that it will be moved seems to be almost exactly the same. and what is the additional invasion of privacy? the invasion of privacy that's involved in walking a few feet up a driveway and the home is not even mr. bird's home. why does the balance come out different here? >> well, your honor, so here's the way that i think about that. if you're looking at the terms that support the automobile exception, you have ready mobility and you have the lessened expectation of privacy. but the curtilage and the home are essentially more important concerns than that.
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so, for instance, if i had a fist full of cocaine and i'm out in public, the cocaine is extremely readily mobile. there's nothing that is easier to dispose of than a fistful of cocaine. if i've got a sink, it can be gone in seconds. it's extremely readily mobile. nor in the cocaine itself is there any expectation of privacy. it's illegal to possess it already. but if i'm standing in, say, my living room or my garage with a fistful of cocaine, the court would require a warrant for the police to come to that address and look for that and get me. >> yeah, well, i think the privacy interests would be quite different if this was in the house or if it was in the garage. but this is not in either of those places. it's in a spot that's visible from the street. right? >> it's visible from the street from directly at the end of the driveway, yes, your honor. it is obscured from any distance in either direction by the brick walls that surround where this motorcycle was on three sides, one side being the house. so the motorcycle here is five
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feet from the side of the house. and to the extent that curtilage is at issue, curtilage has been waived by the commonwealth by not arguing it below, and this is a clear case for curtilage given the distance from the house. >> how much does your argument depend on us viewing this as two things, one a trespass on private property, the curtilage, and then a search within that private space? is your argument hinge on that distinction? >> well, i think we make that distinction because it's important just to make sense of the fourth amendment to think about it step by step. and there are two searches here. the first is the intrusion into the curtilage under jardeans which is clearly a search outside of my implied license, and the second is the removal of the cover from the motorcycle, which is similar to opening a container to find a vehicle inside, or perhaps opening the door to a car or removing a
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cover from a car. >> if this motorcycle were parked on a street and it was covered by a tarp, you would say the motor vehicle exception doesn't apply because it's covered by a tarp? >> no, your honor, if it were parked on the street then the automobile exception would apply. >> what's the relevance of the tarp? >> the relevance of the tarp is essentially that there is a -- there is some expectation of privacy in a tarp, particularly placed within the curtilage of the home. so the location of the motorcycle is very important here. >> so what difference does it make that the tarp was there? >> the tarp perhaps makes it particularly clear that the officer was undergoing a search, not just, say, walking where he could have said, oh, this is almost -- >> counsel, let's change the hypothetical. is there still a violation under your theory of law if the motorcycle was in plain view in the curtilage, and he just walked onto the curtilage?
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i don't know where the vin is on the motorcycle, by the way. in a car, it's within the car. so you have to open the car door. but let's assume that you have to move something in the motorcycle. i don't know, do you? >> i don't think you would have to move something on the motorcycle. and so -- >> let's just assume that. no top on it. does your argument still stand? >> yes, your honor. so if the motorcycle is where the motorcycle is in this case, but there is no cover on it, there is a fourth amendment violation, and that is -- >> well, why? because, i mean, suppose the policeman is standing on the sidewalk. he -- the window of the house is quite close, and there inside he see as huge pile of cocaine. i thought, but perhaps i've got it mixed up, i thought that seeing something that is an illegal substance that can be easily disposed of in about 3
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seconds would, in fact, justify, create an exigent circumstance under which the policeman could enter. am i wrong about that? >> close, your honor. so -- >> what is the law there? >> if an officer standing on the sidewalk looks into the window of a house and sees a pile of drugs through the one i do. >> yeah. >> that creates probable cause that would permit the officer to get a warrant to go in the house. >> he gets a warrant and they throw it all down the sink. because there is nothing by the time he comes back. i thought that was an example of an exigent circumstance. you know the area of this law better than i do, i guess. that isn't? >> it's not impossible that there would be an exigent circumstance. >> i've given you the facts. the facts are, there's a big pile of cocaine right there, and somebody wandering around inside, and can't he -- what is an exigent circumstance if it isn't that? >> it's particularly important to that hypothetical that there's someone wandering around outside. >> he has reason to think there's somebody in the house.
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>> right. so it's certainly possible that it could be created if there's a person -- >> if that's an exigent circumstance and you happen to see -- now, changing the situation, you happen to see a motorcycle, which is a rather unusual shape, and happens to look identically like the one that you know was just stolen, you can't go and go look at it? you have to get a warrant? of course they drive away in the meantime, but nonetheless you're there by yourself, no other policeman. it's in the window, okay. or it's in the driveway. why can't you? >> just to be clear in this case the supreme court of virginia steered away from exigency and said, no, we're not -- >> i know that. that's why i thought the tarp made a difference. and that's why i thought this was a case about a tarp. oddly enough, and not a case about whether you have an exigent circumstance. >> it is not case -- >> you just told me i'm wrong. >> this is not an exigency case.
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the supreme court of virginia specifically -- >> no, i know that. what i'm trying to get at is i suddenly thought i don't understand this case because you said the circumstance is the same without a tarp. that's what confused me. that's why i asked the question. >> so the officer testified that when he arrived at the property there was no one home. and the exigency, the relevant exigency, were there one here, would be imminent destruction of evidence. and he testified that no one was there. the motorcycle is under a tarp. he has a picture or a cover. he has a picture of the motorcycle, in exactly the same place from facebook, which he must know was taken at least a few hours earlier because he's been with the person who he believes owns the motorcycle in the meantime. so there's no obvious exigency here. >> mr. fits -- i'm sorry. >> there is no exigency here and
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that would be an issue for remand. >> could i go back to the exchange you had with justice alito. when you gave the hypothetical about drugs, he said that would be different, different in a home. but here you have the motorcycle parked out in the open on the driveway in this enclosure where you can see it from the street. and i guess this is the question i want to ask you. if there is that difference, like in a home you better have a warrant. but here it's out on the street. but in the curtilage, in the curtilage, and that's established. >> yes. >> it's not disputed here. how far are we committed by jardeans to treat the curtilage exactly as a home? that seems to be important. given the things you and justice alito agreed on. how far do we say, look, what jardeans said or what we've said in other cases is we have to treat the curtilage exactly as we would the home, even though
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you can actually see the motorcycle on the curtilage? >> yes, your honor. so in jardeans, the court said, "the curtilage is protected as part of the home itself for fourth amendment purposes." and even the court in jardeans -- and at the time the court was quoting oliver t 1984 case that recognized open fields and said the same thing. and the idea that curtilage is protected as part of the home itself is important, and i think -- >> isn't it -- whose curtilage it is. here we're told that there was a close relationship between the defendant and the homeowner. but suppose there weren't that close relationship. suppose it was a brand new girlfriend, and who never stayed overnight, he was hopeful, but he hasn't. it's parked the same way.
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>> so you may, your honor, be -- it sounds like you are describing a difficult case of fourth amendment standing or right to object. this court is very clearly said in minnesota versus olson that the overnight guest has the right to object, and that's the status in this case. at minimum. i mean, really, it's his family, the mother of his child, his child who lives there, and she is the lessee. he spends several nights there. on the other end of the spectrum, being in a place for a couple hours to do business would not create a right to object. to the extent connection to the property, connection to the curtilage would be treated the same way as connection to the house. >> coming back to justice -- to the question. did we say in jardeans that the curtilage is to be treated the same as the house for all fourth amendment purposes? i thought the issue in jardeans
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was whether -- was whether officers who did not have probable cause were permitted to walk up to the front of the house? at which point they acquired probable cause. >> well, yes, your honor. so jardeans identified a search, and it identified a search of the home based on actions taken exclusively in the curtilage of the home. and the majority essentially said, as i read it, that the officers acted beyond the scope of the implied license when they brought a drug dog, and they spent a few minutes in the curtilage, sniffing around, that's not what there would be an implied license to do, which is essentially just a knock and talk. so it's a search of the curtilage, and the court stopped there. this court stopped there, but of course it was affirming the florida supreme court, which had thrown out the search for lack of a warrant based on the protection of the curtilage. >> counsel, we permit the police to seize items in plain view in
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a home. they get a search warrant for the home. they see an item that they have probable cause to believe is incriminating evidence. they can seize it. justice breyer said exigent circumstances kmerpermit the po to seize items. i think the assumption, or not the assumption, the premise of all of those cases is that the police are there legitimately. if you have a warrant, you are permitted to be there. in jardeans, you could -- couldn't seize the incriminating evidence wafting from the house because you didn't have a right to be in the curtilage. and so isn't there a difference when you are in the street, as these police officers were, they have a right to be on the
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street, they have a right to look at whatever is visible, and they could see the motorcycle from there, so is this a plain view case? is this an exigent circumstance case? that's why i thought that justice br justice breyer was asking whether the search of the tarp was part of this. because was this in plain view in essence? as i understood it they weren't sure it was the same motorcycle. i thought the wheel was the same. i'm not sure why they needed that if they knew the motorcycle was stolen, or did they not know yet that it was stolen? >> the record is unclear, and we would not -- we don't believe that the officer thought the motorcycle was stolen. he was looking for the motorcycle -- >> how do you attribute the way i'm looking at this, which is -- the police are standing there. they see something and have
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probable cause to believe that it's incriminating evidence. how is that different than being inside the home with a warrant? and again, i'm not sure i see the difference, although the tarp is a difference because they are lifting -- they're searching something else besides the motorcycle. >> so, your honor, this is not a plain view case because in horton versus california, the court said in order for plain view to apply to allow the seizure of the thing, the officer must have a right of access to the thing itself. so there's no right of access. there's no implied license to go into the curtilage to look for evidence that you have seen. and so seeing the motorcycle from the street in this case is just like seeing the motorcycle or seeing drugs through the window of a house. >> do you dispute the fact that they had probable cause to believe that the thing that they saw covered by the tarp was the motorcycle they were looking for? >> we do not dispute that.
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>> okay. >> and so ultimately here, this is a fairly straightforward case, i think, the motorcycle is five feet -- >> you don't dispute -- in other words, you, in your view, you agree that the policeman standing on the sidewalk knows that that item covered by, or at least has probable cause to believe, covered by the tarp is the possibly stolen motorcycle, you agree with that? >> he has probable cause to believe that is the motorcycle that eluded him in traffic, that he was looking for. of course there could be other things under the tarp as well as the motorcycle. >> he didn't really have to lift the tarp at all. >> well, he wanted to lift the tarp to be sure. >> that's his decision. he didn't have to. in your view he could have just grabbed the whole thing, tarp and all, if he had access. >> well, he didn't have access. >> i know that.
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but i'm saying if he'd had access to it, if they'd said please come to my curtilage. now, if that had given him access, he could have just grabbed the whole thing, tarp and all. is your view -- i'm saying, do you agree -- i thought from what you just said, i was surprised but i thought that now you do agree that that is the case, he could just grab the whole thing? do you agree with that or don't you agree with it? >> no, your honor. he is investigating the crime of eluding him in traffic. ultimately that is a crime committed by the driver. >> i think we got confused about that. the police were looking for him because he eluded them by speeding away. the evidence of the theft comes when they see the number after they lift the tarp. >> yes, your honor. now, there is some it is agreement in the record about that.
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but the officer testified he went to the house solely to look for the motorcycle that had eluded him, he was asked, was the motorcycle -- did you think the motorcycle was contraband? and he said no. so he was looking into the eluding, and when he ran the vin number he found that it was stolen. >> so he didn't know this was stolen property yet, the vin number -- this is like jardeans, the vin number gave him that information. >> that is what he stated, yes. >> you could see under the tarp, right, some identifying characteristics in the extension of the wheel that allowed it to go 140 miles an hour, and the color scheme and all that? >> well, you couldn't see the color scheme. but you could see -- the basis for the probable cause is he has the facebook picture that shows the motorcycle not under a tarp and then he gets to the house and it's under a cover, in the same spot. >> but it's probably cause to arrest the driver. it's not probable cause to arrest the motorcycle. it's the driver that he was
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charging charging elusive driving. >> it is a police investigation in which he's ultimately trying to find the driver. >> you can't seize the motorcycle, putting aside the curtilage question? you have probable cause to believe that this person was driving that type of motorcycle. it's an honest question. i don't know the answer. don't you have probable cause to then seize the instrumentality of the crime? >> i think that you do, your honor, but the curtilage -- >> i know the curtilage -- >> you can't really set that aside. >> maybe this is the same question justice breyer was asking, but let's say the motorcycle was on the -- covered with a tarp, on the sidewalk, the little path to go to the door, in other words a place where he did have a license to go, right, he said i'm just going to go knock and talk, and it's right there, would he have -- >> no. >> he couldn't seize that even with probable cause? >> that is outside the implied
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license of his ability to go and knock and talk at the door of that residence, your honor. he can't stop to perform additional searches or seizures. >> in other words, you have a license to go to the door and knock but you can't look at anything in the way. you sort of have to block it off? >> no, you have the right to use your eyes. but you don't have the right to go beyond what a reasonably respectful person approaching the door would do, and stopping to examine or seize a motorcycle would be outside of that implied license. now of course here the motorcycle is not even on the path to the front door. he's not going to the front door. he testified he was not knocking and talking. he walked up solely to take the cover off, to see if this was the motorcycle that he had probable cause to think that it was. >> he had probable cause. i thought you admitted he had probable cause to believe that the thing covered by the tarp was the motorcycle that had eluded him by driving 140 miles an hour. >> yes. >> right? >> yes. >> he has probable cause to search that motorcycle to find
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the vehicle identification number, which will tell him the owner of the motorcycle, which will help him arrest the person who committed this crime, right? >> yes. >> so the case comes down to this. if the motorcycle were parked on the street or maybe further down the driveway and therefore not in the curtilage, they wouldn't need a warrant, they could search it. but because it was parked a few feet further away, although in a spot that's visible from the street, they could search it in the first instance because of the risk that the motorcycle would be taken away. but in the second instance, moved a few feet further up the driveway, still visible from the street, can't -- they can't search it because of the additional invasion of privacy that is involved in walking those few feet up the driveway. >> yes, your honor. >> that's what the case comes down to? >> yes, the protections of the curtilage of the home, protected as part of the home itself, and for good reason.
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officers are prevented from going into the curtilage of a home to prevent them from being, say, in the backyard where there might be a parking area where people are parking. to keep them from going into garages and things like that. the curtilage -- >> could the police have an interest in seizing or securing this motorcycle as soon as possible? >> no, your honor. there's no exigent circumstance -- >> leave it sit there a couple of days and just get around to it? isn't this, a, a dangerous item and it was used for a dangerous purpose? and the instrumentity and evidence of a crime? and it's movable? >> it's the exactly the same as if he had seen something readily movable like drus through the window of a house. he would have to get a warrant for that and it's the same here. there are 49 other states in the federal government. the federal government has just been here and said the home is
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the core of the fourth amendment. >> it's the same as if it were a car but the car were unrepaired, all the tires were off the car and the hood was up and the engine was taken out, the same, no difference? >> well, your honor, this court -- readily mobile can include a car that's wrecked. at some point maybe it becomes but readily mobile is not something that's examined on a case-by-case basis -- >> you think it's irrelevant, the immobility and ease of moving it, it's irrelevant to this case, that's what you want us to see? >> it is not any more readily mobile than things that require a warrant -- >> mobility is irrelevant to this case? >> yes, i will say that. i finally reserve the balance of my time. >> thank you, counsel. mr. cox? >> mr. chief justice and may it please the court, officer rhodes' search of the motorcycle should be upheld for three reasons. first, the search occurred outside the firm bright line of the house where the
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justifications for the automobile exception fully apply. second, officer rhodes had probable cause before he ever stepped foot -- >> in your brief you seem to say that you're not -- you don't seem to say, you say you're not taking a position on whether an officer can break into a garage or walk into a garage that's closed but not locked. so you seem to be suggesting that the mobility of the automobile, wherever it is, permits the police to enter? is that by force or without force? >> this court has never said that the mobility changes depending on where it is -- >> will you answer my question? that seemed to be what the court below us was saying, which is where the item is located is
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irrelevant. if it's an automobile, whether in a garage or the motorcycle parked inside the living room, some people park their bikes inside, actually. doesn't matter where it is, that that gives the police the right to enter and search? >> the supreme court of virginia did not impose that restriction, and this court has never ton that either. we think that it would make sense if the court were to draw a line here, although it's not necessary, if it were to draw a line, it would make sense to draw it -- >> you're saying it's not necessary, because the facts don't support it. but does the logic of their holding and your position require that outcome? do we basically say, contrary to our rule that the curtilage is not part of your home. we know it is. that's what we've said in case after case. so do we say now the curtilage is not part of the home for
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purposes of automobiles? then how do i fit in the line? >> sure, there are a couple of things baked in. let me try to answer them in turn. we don't read hardean and the other court cases like oliver as saying that the curtilage in the home should be treated the same for all purposes. for determining one's reasonable expectations of privacy you might treat the curtilage in the home the same and that's what hardean seemed to suggest. cited to oliver, one of the curtilage cases in footnote 11 they say, we do not say the curtilage in the home should be treated the same for all purposes. while it might be true for determining the reasonable expectations of privacy, it's not binding on courts to say what's reasonable and what's not, based on what's the curtilage and the home. the supreme court of virginia did not place restriction on the automobile exception applying in one place versus another because this court hasn't done that. if the court were to draw the line and i recognize that you're trying to decide a lot of cases here, not just this one, that
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would be a good place to do it because that is the firm bright line that the court has recognized in a lot of other cases as well. >> so under that rule, though, police could as i understand your position search for cars in garages, closed garages, carports, anywhere on a property, no matter how closely attached, or even if firmly attached to the house? >> no, not everywhere on the premises, your honor. >> not in the house but on the curtilage -- >> a garage is often considered a part of the house. >> if we say that's curtilage, which a lot of case in the past at least have suggested, and we deem a barn, a garage, curtilage, the police can without a war rapt search for a car there under your rule? >> if it's not part of the dwelling. fit is part of the dwelling, no, they could not search it. >> not many people live in their garage. some people do, and in barnes. but usually though reserved for cars and animals. you're suggesting in those
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places police can search without a warrant, correct? >> garages are common hi used for a lot of residential purposes, they might have storm out there, an extra refrigerator, somebody might be living out there, if a teenager gets too ram bunk, put him out in the garage. >> i want to ask you two questions. the first is to be sure i have the basics right. >> yes. >> okay? the basics question is, weird hypothetical, but i'm using a weird hypothetical for illustration. the mad art burglar has just stol stolen "the thinker." rodin's "thinker" from the museum, it weighs 2,000 pounds, and with his confederates he's put it in his new glass house. the policeman stopping on the sidewalk looks in the window and sees, my god, there it is, the thing he's just stolen. i thought the law is that that policeman cannot go into the house until he gets a warrant.
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>> yes. >> that's the law. >> that's my understanding. >> "the thinker" is not going to escape, it weigh s 2,000 pounds >> unless there is some exigent circumstance to justify it. >> fine. the other principle is, it's not "the thinker." it's a wisp, a wispy bit of very suspicious drug smoke. as soon as he sees the smoker, as soon as he gets an inclination of a policeman around, i tell you where all that drug is going to be, right down the sink. okay? in that case he doesn't need a warrant. because there's exigent circumstance. is that right? >> that's right. if the destruction is imminent. in this case you don't have the exigent circumstance, you've
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ruled that out? >> i think you do have -- >> you might have it but that's not in front of us, that's not why we took the case, that's not what this is about, right? >> there's a categorical exigency to automobiles -- >> there's two examples. one, it's curtilage, not house. and two, it is a movable thing like a police -- like a car. okay, so the question is, moreover, the policeman didn't know with any certainty, he certainly suspected, maybe had probable cause, but he didn't know that's the right motorcycle. if all those things are true, hypothetically, it's as if, though it's the curtilage, he saw in the middle of the driveway a box. and he thought inside that box there might an motorcycle, or drugs, or something. and can he go up, without a warrant, and without there being exigent circumstances, to open the box to look to see if inside
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there are drugs, or a motorcycle? i thought that was this case. and even though, and i think you want to say, yes, he can, if it's a motorcycle, but not if it's a box. a box carries a motorcycle like a tarp, you can say yes, you want to say yes, i would just wonder why. it's on the driveway. it's in part of his house. i know that the motorcycle's movable. but there is no exigent circumstance. he wants to look into the box. open the tarp. why does the fourth amendment permit that? okay, that's a long, long question. i just needed the basics. now i've got to my point. >> i'm sure you'll correct me if i misstate what the hypothetical says. my understanding is that there was a virtual certainty here that this was the same motorcycle under the tarp. so there was not an uncertainty about what was under the box, as
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it were. the court, to the second part, the court has also treated other closed containers differently than vehicles. in the ross case, in acevedo, they have said, containers are different than automobiles, because of the move ability of them is just far greater than the move ability of other items. and there was a debate. there were some predecessors of yours on the court who wanted to suggest that closed containers should be treated the same. a couple of justices in coolidge who thought that was the case. they ended up in the dissent in ross. and certainly in the minority in acevedo. >> i thought your point was that you understood on the automobile exception for it to have -- include a categorical exigency aspect. in other words, while it's not the case that you see the guy revving up the motorcycle, about to take off, which would be an exigent circumstance but you think because -- you want to
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extend or apply the automobile exception to stationary vehicles within the curtilage, because you think all the guy has to do is he sees the police officer, he runs out of the house, starts it up, and goes away. >> yes, your honor. i think that's one of the least controversial points in this case is that because this court has repeatedly held that a car doesn't actually have to be moving or with somebody there with a key ready to jump on it -- >> that goes back to my basic question. which is, how do i differentiate the car in the garage, if -- or the car through a window that you can see. you about say that exigent circumstance -- that's what the virginia court appeared to say, that it created an absolute rule. the police can break into anything, go anywhere where they see the car, whether they're at that place legitimately or not. >> yes, this court has treated it as an absolute rule.
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>> and that's the rule you want us to uphold? >> it could. i mean, you could just apply that rule to this case and not make any new law -- >> then we should go ahead and do the same thing for drugs and papers too, because -- entech, we can overrule entech while we're at it, going back to the founding. they have a fireplace, they have a chimney, they can destroy the papers we see through the window. or the drug. we know they have indoor plumbing. they can be readily destroyed too. what's the difference between the destruction of drugs and papers in a home and a car in the garage? >> so this gets to justice sotomayor's question as well. there is a little bit less mobility inside the garage. there's also more expectation of privacy in a garage -- >> the difference between opening a garage door and just walking out and getting into a car is dim minue minimis.
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it happens just as quickly. >> what i said september totally satisfactory. in mcneely you said you don't really look at the policy justifications behind -- >> if the dissension, and there is no real dissension, why as justice gorsuch suggested, you're asking us to expand the automobile exception dramatically, and to basically make an all-time exception forever. even if the driver -- even if the police know that the driver of this car is away on vacation and won't be returning for two weeks. even if they know that, they're not required to go to a magistrate and get a warrant? >> your honor, that's been this court's law for decades. and i wouldn't see it as expanding it -- >> when i look at the automobile exceptions, history going back to carroll, it was actually an originalist opinion that looked
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at cars and analogized them to ships and vessels. going all the way back to 1790. and said that's different than homes or curtilage. and cars are like vessels. on the open sea or in port. it never suggested that you can go look for one in a home. that was never the basis. it was, you can search something that is on the open seas or in a harbor or on the streets. not that you can go into a home to find one. that seems to me categorically -- a category mistake you're making in your argument. can you help me with that? >> i wouldn't say it's a mistake in my argument, it would be maybe a mistake in the supreme court's jurisprudence not to limit it to that extent -- >> i cited the supreme court's jurisprudence in carroll, i'm not sure it's fair to point the arrow in this direction. >> carroll did involve a car that was on the street, but there have been many cases since then in the 90 years since
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carroll where it's been applied when the car is totally immobile and not on the open road. it has been a trajectory of the vehicle exception ever since then -- >> mr. cox, one of the things you're saying is we basically should give -- we shouldn't pay attention to the fact that this was on the curtilage. and you said earlier to a different question, you said, well, you're committed by jardines to treat the curtilage as the home for expectation of prive krirks but for other purposes you can make a distinction between the two. i'd like to know more about that. for what other purposes can you make a distinction between the two? and why can you make a distinction between the two for those purposes when you can't make a distinction between the two for this fundamental question of where you have an expectation of privacy? >> sure. well, certainly oliver opened the door to that argument that the court said, we're not saying it's the same for all purposes. and one example that we cited on brief was the difference between santana and payton, where you can have a warrantless arrest
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outside the house, right, even if it's on the front steps, but you can't have one inside. because that's just beyond the pale. to be on the threshold, beyond the firm bright line this court has drawn. another example -- >> i'm sorry, i just want to get the answer to my question. which is, for what purposes would you treat the curtilage differently from the home, and why there but not for the reasonable expectation of privacy question? so for what purposes first, and then why? >> you cannot search inside the house without a warrant unless there are exigent circumstances or if there's consent. and that's a line that this court has drawn. and the automobile exception is also a categorical rule. we find them in friction. so the court has to decide what's reasonable -- >> mr. cox, it's really a simple question. for what purposes would you say that the curtilage is not the
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house? >> for purposes of -- when you have probable cause to search and a warrant exception applies, then you don't treat them the same. >> and why is that -- why would you not treat them the same for purposes of when you need a warrant, if you do treat them the same for deciding whether there's a reasonable expectation of privacy in them? >> well, the court said in ross that when the automobile exception applies, you are committed to the same search with the same scope as you would be if you had a warrant. so the only thing that's different is having a warrant. and so as long as the investigating officer sticks to that as the officer did here, you're not going outside the scope of the warrant. >> see, i don't know, when i read jardines, here's what i take it to say. i take it to say is home is the most sacrosanct of places. and actually we don't think the
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home stops at the door, we think that there are some areas, like the porch and like the driveway or whatever, and we can argue about exactly what those areas are. but there is some areas which are just as sacrosanct as your living room. that's what i take jardines to say. in that case i think you lose here. >> if that's the case, we have a much harder case to make. but i don't rule jardines as overruling santana, i don't read it as creating a knock and announce rule at the curtilage -- >> remind me what you said about the closed garage at the door. would that be treated like the home? >> yes. >> now that there is a real problem. because you're making a distinction between people who can buy houses with garages and people who are less well-heeled and have a port or patio for the car instead of a garage. so that distinction seems to me really troublesome. between garage and carport.
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>> i guess what i would say is the fourth amendment protects the same quality of privacy, maybe not the same quantity of privacy, for everyone. even the dun factors incorporate that. if you have enough money to build a huge wall, then that's going to impact the analysis of whether that area is protected or not. >> i don't know why you're -- i'm not sure why you're arguing --fy understand your answers to justice kagan, you seem to say, okay, let's say the probable cause is based on the fact that you know that the drugs are in the fy by foot orange boxes and you see in the carport foot by foot orange boxes are and you seem to be treating that the same as the situation when you have the motorcycle or automobile. but i thought part of your argument was that the automobiles were inherently
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different because somebody could just jump on the motorcycle and ride away, while they wouldn't have the same mobility issues with respect to the box, the orange boxes. now are you arguing -- is your argument extend to immobile items in the carport? because it's curtilage rather than the house? or is it limited to the mobility that's characterized the automobile exception? >> yes, the automobile exception is just that, it's an exception on very circumscribed terms. >> the problem with that, of course, we've said the curtilage is like the house, but maybe you would. if you have an automobile in the house, which is not -- jay leno's house, he's got dozens of rare cars or the porsche in "ferris bueller." you're saying you don't -- you can just go in because it's mobile and they got it in there somehow, they can get it out? you don't recognize the
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distinction between the curtilage and the house for the purposes of the vehicles that are mobile? >> the court has laid down a categorical exception. if you were to draw a line, we think the most sensible place to do it would be the bright line of the house because it is used in other fourth amendment jurisprudence. it doesn't need to reach that here. there are arguments that the mobility stays the same and the other justifications for the automobile exceptions stay the same whether it's inside the house or outside the house. if you need to draw a line, that is a sensible place to do it, not at the curtilage. >> i'm sorry -- pier mr. cox, the fourth amendment says the people have the right to be secure in their homes, papers, persons, and effects. so in the curtilage -- the curtilage issue goes to the question of whether it is a search of the home. if it's not in the curtilage, then it's not a search of the home, the fourth amendment doesn't apply. but once you get beyond that, it is a search of the home, the ultimate fourth amendment question is always, is it a reasonable search?
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and that's where we are here. is it reasonable? it's a balancing of interests. that's what reasonableness meant at the end of 18th century, it's what it means today. and so you have to grapple with the real privacy interests that are involved in the case versus the other considerations, namely the mobility of the automobile. and that i understand your argument to be is why it's reasonable to draw a distinction between an enclosed place like the house or garage, and an open place like a driveway. even if it technically falls within the curtilage. >> that's correct. and the search that occurred here was very reasonable, limbed in scope -- >> very see, the problem i have is the court below didn't do this. it basically said the absolute rule, not a balancing test. it said you can search any place where a car is, because that's what the automobile exception permits. but that's a very broad
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statement that would permit search of the garage or the automobile inside the house. you have a very strong argument and so would the court below if it had said, given the nature of this driver's reckless elose of the police previously, exigent circumstances existed in this case, all right? or something like, we don't know where the owner is, and he could come back immediately and get the car. that's not the analysis the court made. >> that's true. the court of appeals of virginia did decide on exigency grounds. mr. collins had been alerted to the police interest in this vehicle -- >> it didn't reach exigency. it said the automobile exception permits the search of any car no matter where it is in the home. >> the supreme court of virginia found that. the court of appeals of virginia below them had decided on exigency grounds -- >> yes, but the supreme court -- >> that's right.
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they didn't make its own exigency analysis. that is another ground on which we win. we'd rather win on a categorical exception. we clearly think there are exigent circumstances here beyond the categorical exigency in the automobile exception -- >> that would be a question for remand because it wasn't reached by the virginia supreme court. >> we would be confident if it were remanded we would prevail on that, yes, your honor. >> officer rhodes had probable cause before he ever stepped foot on the driveway to know that this vehicle was stolen. the supreme court of virginiaof cause before he ever stepped foot on the driveway to know that this vehicle was stolen. the supreme court of virginia in its opinion at 15 said officer rhodes had probable cause to believe the vehicle was stolen and there was testimony by officer rods to support the fact that he did know it was stolen -- >> you say probable cause to get a warrant, then you don't need a warrant. and that's the automobile exception. is there any other exception
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like that where the test of whether you need -- if you have probable cause, forget it, to get the warrant, that's probable cause alone is enough? >> well, i think under plain view you'd have to have some probable cause to believe that what you were seeing was contraband or otherwise evidence of crime. i think there is analysis into knowing if -- >> the fact that the motorcycle was in plain view, subject to the partner being on it, was a factor in the decision by the supreme court of the state of virginia, was it not? i thought they relied upon the fact that it was in plain view with the tarp on it. >> i think that that is mentioned. but i think the probable cause was formed at least in part by
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the comparison of the traf on the facebook page, and when officer rhodes walked up, stood at the end of the driveway, and could see the same thing -- >> it was in plain view. >> it was. >> it's not as if there was a closed garage and they went and opened the garage. >> that's right. he wouldn't be able to go up to the edge of the garage, assuming there was curtilage, and look in to see if it was in there. the probable cause formed before he ever set foot on the driveway. >> was there one search here or two searches here? >> we submit it was one search. >> the search of the motorcycle? >> that's right. >> why is that? why isn't there a search of the motorcycle, but there's really the search of the curtilage? it happened to be for the motorcycle but it's the search of the curtilage? it's a different search entirely. >> we look at it as one search because it's the object of the search that you are entitled to search, whether it's under a warrant or warrant exception. you look at it by -- you know, it's not a separate search for each access point that you go
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to. you wouldn't have gotten two warrants if you had gone to a magistrate. you wouldn't get a warrant to search the motorcycle, then another warrant to actually cross the driveway to get there. we see it as one search for that reason. >> does that mean without a warrant that you always have access to a place if there's a reason that you can seize something that you might find within the place? >> i'm hesitant to speak beyond the automobile exception, but i think the automobile exception would give you that ability. unless there is some other rule that would prevent you from doing it, such as a rule the automobile exception doesn't apply in the house. i'll say, to go back to justice gorsuch's questions about the original understanding of this, all along the justifications for the vehicle exception had been based in the contra distinction between vehicles and houses or dwellings. at first it was the difference in mobility. but then later in

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